Circuit Split on Whether Recidivist Possession Is Necessarily An Aggravated Felony; Fives Hold "Yes"

United States v. Cepeda-Rios, No. 07-50731 (5th Cir. June 4, 2008; revised July 22, 2008) (per curiam) (Jones, Wiener, Clement)

As you can see, this opinion originally issued last month, but the panel just revised it and we didn't mention it the first time around, so here goes. Plus, in the interim, there been more development in the circuit split on the question presented.

The issue: Thanks to the Supreme Court's decision in Lopez v. Gonzales, we know that a state drug offense is not an "aggravated felony" unless the conduct prohibited by the offense would have been punishable as a felony under the federal Controlled Substances Act. Thus, since a first conviction for simple possession is only a misdemeanor under 21 U.S.C. § 844(a), it isn't an aggravated felony. But § 844(a) also authorizes felony punishment for simple possession committed after a previous drug conviction has become final, provided that the procedures for proving the prior conviction under § 851 are followed. Hence the question: is a subsequent state conviction for simple possession an aggravated felony?

Prior to Lopez, the Fifth Circuit held, in United States v. Sanchez-Villalobos, that a subsequent simple possession conviction was an aggravated felony because § 844(a) authorizes felony punishment for that offense. But Sanchez-Villalobos also held that the conviction at issue was an aggravated felony under United States v. Hinojosa-Lopez, which treated all state felony simple possession convictions---first or subsequent---as aggravated felonies. Thus, as a subsequent panel of the Fifth Circuit observed in Smith v. Gonzales, the effect of Sanchez-Villalobos’s alternative holding with respect to the § 844(a) issue is "uncertain" because the decision’s ultimate holding "is fully explainable by the conclusion reached in [the part] of the decision [relying on Hinojosa-Lopez] that the conviction qualified as a felony because under state law the punishment for the offense exceeded one year."

Which brings us to Cepeda-Rios, which concluded that Lopez does not require reversal of the recidivist-possession holding in Sanchez-Villalobos. In so holding, Cepeda-Rios relied on some dicta in a Lopez footnote, in which the Court said that

Congress did counterintuitively define some possession offenses as “illicit trafficking.” Those state possession crimes that correspond to felony violations of one of the three statutes enumerated in § 924(c)(2), such as possession of cocaine base and recidivist possession, see 21 U.S.C. § 844(a), clearly fall within the definitions used by Congress in 8 U.S.C. § 1101(a)(43)(B) and 18 U.S.C. § 924(c)(2), regardless of whether these federal possession felonies or their state counterparts constitute “illicit trafficking in a controlled substance” or “drug trafficking” as those terms are used in ordinary speech.

Having quoted this passage, Cepeda-Rios concluded that the hypothetical approach used in Sanchez-Villalobos is consistent with Lopez's analysis. It then relegates the real meat of the issue to a footnote of its own:

Cepeda-Rios argues that the government’s failure to comply with the procedural requirements of § 851(a) prohibit the court from enhancing his sentence under § 844(a) based on his first state possession conviction. Although Cepeda-Rios’s argument would have merit if the government was actually seeking to prosecute him under § 844(a), he was not prosecuted under that section. Thus, the relevant inquiry under the sentencing guidelines is whether the crime is punishable under § 844(a). The United States was not a party to Cepeda-Rios’s state law convictions; it had no opportunity and was not required to comply with the procedural requirements of § 851(a). Cepeda-Rios had the opportunity to object to the finality of his first state possession conviction at his federal sentencing hearing, but he did not do so.

Although the revised opinion in Cepeda-Rios doesn't mention it, there's a developing split on this issue. Prior to Lopez, the First and Third Circuits held that recidivist possession isn't automatically an aggravated felony, with the Third concluding that it won't so qualify unless the state had procedures like those found in § 851 for charging and proving a prior drug conviction, and actually employed them to establish the prior conviction in the subsequent case. See Berhe v. Gonzales, 464 F.3d 74, 85–86 (1st Cir. 2006); Steele v. Blackman, 236 F.3d 130 (3d Cir. 2001). The Seventh Circuit, on the other hand, has reached the same conclusion as Cepeda-Rios, relying on the same footnote from Lopez. See United States v. Pacheco-Diaz, 506 F.3d 545 (7th Cir. 2007). The BIA has even gotten in on the fun, concluding that Sanchez-Villalobos remains good law in the Fifth Circuit post-Lopez, but refusing to follow it in cases arising in circuits lacking controlling precedent on the issue. See In re Carachuri-Rosendo, 24 I & N Dec. 382, 391 (BIA 2007); In re Thomas, 24 I & N Dec. 416, 421 (BIA 2007). Plus, after those BIA decisions, the Seventh Circuit issued another opinion in Pacheco-Diaz denying a petition for panel rehearing, with the author of the original panel decision dissenting from that denial (and pointing out that the issue wasn't even fully briefed, as the case was originally argued pre-Lopez)! 513 F.3d 776 (7th Cir. 2008) (per curiam). Most recently, the Sixth Circuit has weighed in on the side of of the First and Third Circuits, holding that, under the "hypothetical federal felony" approach of Lopez, a simple possession conviction occurring after a prior drug conviction is not an aggravated felony "unless [the subsequent] conviction required a finding of a prior conviction." Rashid v. Mukasey, No. 06-4270 (6th Cir. June 26, 2008).

Of course, as usual, all of this activity means that you should consider preserving the issue should it arise in any of your cases.